Case Study: Unlawful Deduction of Wages when you’re on call.

In 2011 we acted on behalf of a client, an interesting claim against Whitbred Plc.

Our client was advancing two distinct claims and was successful, at the Employment Tribunal, with one of them, namely his claim for unlawful deduction from wages.

This case serves as an important reminder to hotel workers and certain staff who sleep over at their employers premises and are on call during those shifts.

Our client was a relatively low-paid duty manager who, as part of this terms and conditions, was frequently required to stay overnight at a hotel during which time he was required to be “on call”.  Whilst most of the time he was able to sleep through the shifts, infrequently, he was called upon to assist with emergencies and to support the skeleton night staff.

Our client’s case was indistinguishable from the leading case on employees’ entitlement to be paid for such shifts, the case of Vasquez-Guirado and another v Wigmore^[1].

Throughout his 4 years employment with Premier Inn, our client was as a matter of law, entitled to be paid his basic hourly rate for the time he spent on call and sought to address this issue with his employer.

However, they refused to acknowledge his rights to be paid for the shifts and, as a consequence of this, he chose to resign.

He therefore also advanced a constructive dismissal claim.

Whilst the Tribunal were not satisfied that his decision to resign was as a consequence of his employer’s failure to pay him for his night shifts, they did award him back-pay for all of the night shifts he conceivably worked during his employment.

Ruthless employers often incentivise managers to keep their wage bill as low as possible and as a consequence, low-paid workers are often taken advantage of and we believe that this is what happened in this case.

It was, however, possible to recover our client’s back-pay pursuant to Sections 13 and 23 of the Employment Rights Act 1996 which in particular Section 23(1)(a) which entitles an employee to recover back-pay if it has been routinely unlawfully deducted from an employee’s wages as long as the claim is issued at the Employment Tribunal within 3 months (less 1 day) from the last unlawful deduction from wages.